defendant Term City from February 1989 to September 10, 1991, the date she was terminated. Term City is a defendant in all three counts, and two Term City managers (Henri Van Dam and Terry Fleck) are defendants in Counts II and III. In Count I, the plaintiff alleges that she was terminated because of her age in violation of the ADEA. In Count II, the plaintiff alleges sexual discrimination that resulted in her termination and that defendant Term City created a sexually hostile environment from "September of 1990 until approximately September of 1991." (Compl. Count II P 11.) In Count III, the plaintiff alleges disparate treatment because of her religion. Although not specifically cited, Title VII of the Civil Rights of 1964 is the apparent basis of Counts II and III. For example, the complaint alleges that Term City is an "employer" as defined in Title VII, and that the plaintiff has exhausted all procedural and administrative requirements for a Title VII claim.
The defendants have filed a motion to dismiss all claims arising pursuant to the 1991 Civil Rights Act; all claims against defendants Van Dam and Fleck in their individual capacities; and all claims not specifically raised in the EEOC/IDHR charge, including the sexually hostile work environment and religious discrimination/harassment claims. For the reasons discussed below, the motion to dismiss is granted in part and denied in part.
(1) Applicability of the 1991 Civil Rights Act.
In Hangebrauck v. Deloitte & Touche, 1992 U.S. Dist. LEXIS 17506, at *24 (N.D.Ill. 1992) (Duff, J.), this court held that the 1991 Civil Rights Act, which amended Title VII of the Civil Rights Act of 1964, "does not apply retroactively to cases where the conduct complained of predates the Act, regardless of the date the charge was filed." See also, Williams v. Carson Pirie Scott, 1992 U.S. Dist. LEXIS 13643, at *8 (N.D.Ill. 1992) (Shadur, J.) ("Decisions from our Court of Appeals dealing with what has been called retroactivity under the 1991 Act contain what are at least strong signals that employer conduct that preceded the statutory amendment will continue to be controlled by pre-amendment law, even if sued on afterwards.") In the case at bar, the plaintiff was terminated on September 10, 1991 -- approximately two months before the November 21, 1991 effective date of the 1991 Civil Rights Act.
Prior to the enactment of the 1991 Civil Rights Act, compensatory and punitive damages and jury trials were not available under Title VII. Hangebrauck, 1992 U.S. Dist. LEXIS 17506, at *20. Accordingly, plaintiff's demand for compensatory and punitive damages and a jury trial on her Title VII claims (Counts II and III) is inappropriate and is therefore dismissed with prejudice.
(2) The claims against Van Dam and Fleck in their individual capacities.
As explained in Hangebrauck, "this court adheres to the view that individual capacity suits under Title VII are improper" in pre-1991 Civil Rights Act cases. Hangebrauck, 1992 U.S. Dist. LEXIS 17506, at *10-11. As noted above, the 1991 Civil Rights Act is not applicable to the case at bar. Accordingly, all claims against Van Dam and Fleck in their individual capacities are hereby dismissed with prejudice.
These claims could also be dismissed since neither of these individuals was named in the plaintiff's EEOC charge, and "ordinarily, a party not named in an EEOC charge may not be sued under Title VII".
Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). An exception to this general rule exists where "an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation aimed at voluntary compliance." Eggleston v. Chicago Journeymen Plumbers', Etc., 657 F.2d 890, 905 (7th Cir. 1981). However, no allegations in the complaint nor arguments in the plaintiff's response brief suggest that Van Dam or Fleck was given the opportunity to participate in conciliation aimed at voluntary compliance. Hence, they do not fall within this exception.
(3) The expansion of the plaintiff's claims to include matters beyond the literal language of her EEOC/IDHR charge.
In her EEOC/IDHR charge, the plaintiff stated that the "earliest" date of alleged discrimination was "9/10/91", and that the "latest" date of alleged discrimination was also 9/10/91. This was the date that plaintiff was terminated. In the factual narrative of the EEOC/IDHR charge, plaintiff describes her grievance as follows:
I believe that I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended in that I complained of Ageist [sic] and Sexist remark [sic] made by the Respondent's Chief Operating Officers, and was subsequently discharged.